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[>]Updated 10/21/96
[>]

Advance Report of Final Divorce Statistics, 1989 and 1990

The National Center for Health Statistics has released a new report, Advance Report of Final Divorce Statistics, 1989 and 1990, which show divorces recorded in 1989 and 1990. There were 1,157,000 divorces in 1989, and the 1990 total of 1,182,000 divorces is the highest number recorded since 1985, which was 1,190,000 divorces.

Starting with 1989 data collection, statistics were collected on physical custody of children involved in divorce. In 1990 the wife was awarded custody of the children 72 percent of the time in divorces in which custody was awarded. Joint custody was the second most common arrangement (16 percent), while husbands were awarded custody in 9 percent of divorces in 1990. Statistical information is obtained directly from the divorce certificates that are collected by the Vital Records Office from each State and the District of Columbia.

Data highlights:

[o]The divorce rate per 1,000 population was 4.7 in 1989 and 1990 and is 11 percent lower than the peak rate of 5.3 in 1979 and 1981.

[o]In 1990, 16.8 per 1,000 children under the age of 18 years were involved in divorce.

[o]Most divorces occur within the first 10 years of marriage.

[o]The median duration of marriage for divorcing couples in 1989 and 1990 was 7.2 years.

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Parenting After Separation 
produced by ONTARIO WOMEN’S NETWORK ON CHILD CUSTODY AND ACCESS (OWNCCA) 2002
               

What do parenting arrangements look like after separation? 

After a separation or a divorce, most parents come to an agreement about who will care for the children without having to go to court. In most cases, mothers have "custody" of the children, and fathers will have "access" to the children.

The "custodial parent" has the responsibility for the care and control of the children, and is the one who must make the important decisions that shape the lives of the children. In a situation where one parent has sole custody, the access parent has visitation rights. Even though they may spend significant time with their children, access parents do not have the right to make decisions about the children's upbringing without the consent of the custodial parent.

Claims by Father's Rights groups that men receive unfair treatment by the courts in custody decisions are simply untrue. Courts often award custody to women because they recognize that the mother was the primary caregiver when the relationship was intact. In such cases, they recognize that children will suffer the least upset in a separation if they remain in the care of the parent who has been the primary caregiver.

 If there is bias in the legal system, it is against women, not men. Indeed, when men do apply for custody of the children, they often get it despite the fact that they had not exercised their fair share of parental responsibilities during the relationship. This is a reflection of the current trend in favour of joint custody and maximum contact between a child and both parents.

MAXIMUM CONTACT

In 1985, the Divorce Act was amended to include a new principle in family law: "maximum contact" between a child and both parents must be encouraged after divorce. This was accompanied with the inclusion of the "friendly parent rule", that directs judges to grant custody to that parent which will agree to foster a maximum of contact of the children with the other parent.  Mothers who seek to protect their children from abusive or controlling fathers are often labeled "unfriendly", and they may lose custody of the children because the courts find them "uncooperative".

Maximum contact with both parents is supposed to be in the best interests of children, but it often is not. When a father is violent, abusive or controlling it is not in the best interest of the child to have extensive contacts with him. Unfortunately, wife assault and sexual abuse of children has not prevented violent men from gaining custody or unsupervised access to their children. And courts still expect women to continue to parent with their abuser.

In addition, the maximum contact rule is regularly used by vindictive men to harass ex-partners, by allowing them to take mothers back to court for any allegation of access denial.  Father's Rights groups say that unfair denial of access by mothers is a big problem, but it actually happens in a very small percentage of cases.

THE RISE OF JOINT CUSTODY ORDERS

Since 1985, there has been an important increase in "joint custody" awards by the courts. Joint custody blurs the roles of custodial and access parents by conferring the same decision-making authority to both. In some cases, the parents will have "joint physical custody" and the child will reside in both their homes equally. But in most cases, the child will reside with the mother, and both parents have equal control over the way their child will be raised.

Because some fathers have become increasingly involved in child rearing, joint custody has become a fashionable option, and most would agree that if both parents are willing to provide equal support and mutual respect, this is a desirable arrangement. However, problems appear when the courts impose joint custody on parents against their will.

Studies show that even when joint custody is willingly undertaken, parenting patterns are very slow to change and women are often left with the burden of physical and financial responsibility for their children. And in the process, they will lose the autonomy necessary to raise their children.  Joint custody can also significantly lower child support awards, and women often end up living in poverty. Finally, joint custody is a tool that can be used by violent or manipulative men to continue to exercise control over their children and ex-partners for many years after separation or divorce.

MANDATORY SHARED PARENTING

In 1998 the Special Committee of Custody and Access recommended that the Divorce Act be radically changed and that "shared parenting" replace the notion of custody and access. The Committee basically recommended that shared parenting become mandatory, and that parents be obliged to agree on joint "parenting plans". In fact, there is not much difference between shared parenting and joint custody: in both cases, parents would equally share in decision-making authority.

Several countries have adopted similar rules, and recent studies indicate that this is not a good option either for women, or for children. Indeed, under shared parenting regimes more women have to deal with husbands who try to control the way they raise the children but don't actually share in the caregiving work. More children are placed in the care of abusive and violent fathers, and more parents spend more time in courts litigating the meaning of the different clauses in their parenting plans. Shared parenting can work: but it must never be imposed on parents, and it not be allowed in cases of woman abuse or child abuse. 

PARENTAL RESPONSIBILITY - WHAT'S WRONG WITH THAT?

In the last few years, a new concept has emerged: both parents have responsibilities toward their children, and these responsibilities are ongoing after a separation or a divorce. A few very influent organizations are advocating in favour of this model, such as the Canadian Bar Association. Recent media reports indicate that the Minister of Justice, Martin Cauchon, will be recommending a reform along these lines.

The "parental responsibility" model has been adopted in different countries, with different nuances. In the U.K. and in Australia, it is similar to a mandatory joint custody or shared parenting model, whereas in the State of Maine it encourages both parents to decide to what extent they will share in decision-making and in caregiving. Reports indicate that the reforms in the UK and in Australia have not been successful. No report has yet been done on the Maine model.

The Ontario Women Network on Child Custody and Access is concerned that a reform based on this extremely vague notion of "parental responsibility" will harm women and children. Like joint custody, its success will depend on the good will of the parents involved. Women already complain that there is no mechanism to enforce or monitor fathers who do not exercise scheduled access and disappoint their children. The Minister of Justice has indicated that he believes that family law would be better left to specially trained mediators and professionals, outside the courtroom.  The "softer" concept of parental responsibility might lend itself to this more informal process, involving unregulated tools like "parenting plans". As with mediation, there may be no public record, no right of appeal and no constitutional guarantees. Like mediation, it's a service that would likely be privatized, without national standards.

In family law disputes, women are often fighting for the safety of themselves and their children, while some men are fighting to maintain power and control.  Making custody and access decisions less formal will not cause violence to disappear; it will simply remove the few existing protections for women and children. Women who leave their partners must have the right to safety, autonomy and economic security in order to be effective parents and carry on with their lives.

WHAT DO WOMEN NEED?

  1. Joint custody and shared parenting should never be mandatory, and should only be encouraged where there are no violence or control issues, and where parents have and established pattern of positive communication.

  2. The "Maximum Contact" and the "Friendly Parent" rules must be abolished.

  3. The government must carefully consider the best interests of the child and women's equality rights before changing the language of "custody and access" in the Divorce Act.

 

For more information...

The Ontario Women’s Network on Custody and Access was formed in 2001 to respond to federal law reform initiatives on the Divorce Act and family law legislation.  The steering committee is comprised of the following groups: Action Ontarienne contre la violence faite aux femmes (AOCVF), DisAbled Women’s Network (DAWN) Ontario, Education Wife Assault (EWA), The National Association of Women and the Law (NAWL), Northwestern Ontario Women’s Centre, Ontario Association of Interval and Transition Houses (OAITH), and the Ontario Women’s Justice Network (OWJN).  

We believe that some of the reforms envisioned by governments risk putting in danger the security and autonomy of women and their children, particularly those who have experienced spousal violence or sexual abuse.  

This Fact Sheet is one of five available on the website of the Ontario Women’s Justice Network (www.owjn.org/custody/lobby1.htm). For more information, please contact the National Association of Women and the Law at 613-241-7570 (ext. 22), or by e-mail: custody.gardelegale@bellnet.ca, or write to us at:      

Custody and Access / La Garde L�gale
National Association of Women and the Law  
Suite 303, 1066 Somerset West  

Ottawa, Ontario, K1Y 4T3  

Act Now!  

We encourage you to communicate directly with your federal or provincial elected representatives to tell them that any changes to the Divorce Act must recognize the reality of violence against women and protect women and children from on-going abuse. To find the name of your federal Member of Parliament, you can call Elections Canada at 1-800-463-6868 or visit their website at www.elections.ca. You do not have to give your name or address, only your postal code.  

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